Kerala High Court
Hareesh P vs State Of Kerala on 1 December, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 15TH DAYOF FEBRUARY 2017/26TH MAGHA, 1938
WP(C).No. 24693 of 2014 (J)
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PETITIONER(S):
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HAREESH P., (PERIKAMANA ILLATH),
HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM),
KAMBIL MOPLA HIGHER SECONDARY SCHOOL,
KOLACHERY P.O., KANNUR DISTRICT, PIN-670 601.
BY ADVS.SRI.MURALI PALLATH,
SRI.MAHESH V RAMAKRISHNAN.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARYTO GOVT.,
GENERAL EDUCATION DEPARTMENT,
GOVT.SECRETARIAT (ANNEX),
THIRUVANANTHAPURAM, PIN-695 001.
2. THE DIRECTOR,
HIGHER SECONDARY EDUCATION DEPARTMENT,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN-695 001.
3. THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY REGIONAL OFFICE,
KOZHIKODE, KALLAYI P.O., KOZHIKODE DISTRICT-673 001.
4. THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, KANNUR,
KANNUR DISTRICT, PIN-670 002.
BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18/01/2017, THE COURT ON 15/02/2017 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 24693 of 2014 (J)
APPENDIX
PETITIONER'S EXHIBITS:-
P1: COPY OF STATEMENT OF FIXATION OF PAY.
P2: COPY OF APPOINTMENT ORDER DATED 01.12.2011.
P3: COPY OF ORDER NO.A4/1399/2011 DATED 06.06.2012.
P4: COPY OF APPLICATION DATED 18.06.2011, STATEMENT OF
FIXATION OF PAY AND OPTION.
P5: COPY OF FORWARDING LETTER DATED 25.06.2012.
P6: COPY OF ENDORSEMENT NO.N DIS.A4/7404/2012.
P7: COPY OF LETTER NO.ACD.A1/25726/HSE/2013 DATED 08.05.2013
ISSUED BY THE 2ND RESPONDENT.
P8: COPY OF LETTER DATED 06.11.2013 ISSUED BY THE 2ND RESPONDENT.
P9: COPY OF APPEAL PETITION DATED 05.08.2013 SUBMITTED BY
THE PETITIONER.
P10: COPY OF GOVT.LETTER NO.47976/T2/2013/GEDN DATED 14.07.2014.
P11: COPY OF GOVT.LETTER DATED 03.12.2012.
P11(A): TRUE ENGLISH TRANSLATION COPY OF EXHIBIT P11.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
ANU SIVARAMAN, J.
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W.P.(C).No.24693 of 2014
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Dated this the 15th day of February, 2017
JUDGMENT
1.The short question which arises for consideration is whether a person appointed as Higher Secondary School teacher (Junior) in the direct recruitment quota, while working as HSA will be entitled to fixation of pay in accordance with Rule 28A Part I KSR.
2.Heard learned counsel for the petitioner and the learned Government Pleader.
3.The learned counsel for the petitioner contended that the petitioner was appointed as HSST (Junior), while working as HSA. It was later found by the Department that total sanctioned strength of HSST was 12 and only 3 posts representing 25% thereof could have been filled 'by transfer'. The petitioner being appointed by transfer, it was contended that his appointment could be reckoned only as against the direct recruitment quota. It was therefore the case of the W.P.(C).No.24693/2014 2 respondents in Exhibit P6, P7 and P8 orders as well as Exhibit P10 order of the Government which are under challenge that the petitioner is eligible for drawing pay and allowances only at initial pay in the scale of HSST (Junior).
4.The learned counsel for the petitioner relies on Exhibit P11 reply issued by the Finance Department of the Government under the Right to Information Act as well as Government Decision No.1 under Ruling No.5 in Chapter 28A and GO(P) No.577/97(86)/Fin. dated 7.12.2007 as well as the provisions of pay revision orders to contended that the clear wording in Rule 28A makes it evident that fixation of pay is to be done in terms of the said rule even in cases of direct recruitment, if the employee was already working in a lower post at the time of such appointment. Reliance is also placed on Government Decision No.1(2) under Rule 28A inserted by G.O.(P) 475/90/Fin. dated 25.09.1990 to contend that refixation under Rule 28A is permissible in the case of appointment by Direct W.P.(C).No.24693/2014 3 recruitment also. Government Order dated 01.07.1992, 24.05.2016 and 07.12.2007 are also relied upon.
5.The learned Government Pleader would, on the other hand contend that the petitioner's appointment admittedly having been adjusted under 75% direct recruitment quota, he can draw pay only at the rate of initial pay in the scale of HSST (Junior). It is stated that the petitioner is not eligible for pay fixation as per Rule 28A and G.O.(P).No.85/2011/Fin dated 26.02.2011 is not applicable to the petitioner since he does not belong to any of the categories enumerated therein. G.O.(P). No.85/2011/Fin is the pay revision order of the year 2011. It provides that in cases of up gradation of posts or appointments to higher post on the advice of PSC, pay will be fixed under Rule 28A Part I KSR.
6.The learned Government Pleader would contend that Rule 28A as well as the provisions of the Government Orders would be W.P.(C).No.24693/2014 4 applicable only in case a person who is officiating in a lower post is appointed, by virtue of such officiation, by transfer or on a selection conducted to a higher post through PSC or otherwise. This is not applicable in the instant case, since the petitioner is deemed to have been directly recruited as HSST and therefore there is a deemed resignation from the post of HSA. He is therefore not appointed to the higher post "while officiating in the lower post" and cannot claim the benefit, it is contended. The learned Senior Government Pleader relies on a decision of a Division Bench of this Court in Mohanan v.State of Kerala [2013(3) KLT 970] to contend that where a person is appointed by Direct Recruitment to another post, there is a deemed resignation and a rejoining and therefore pay will have to be fixed in accordance with Rule 28 of Part I KSR.
7.I have considered the rival contentions. The petitioner herein admittedly was working as HSA. While so officiating, he was appointed as HSST (Junior). The said appointment was deemed W.P.(C).No.24693/2014 5 to be a direct recruitment and orders issued in that respect are not under challenge. The question which arises for consideration is whether a HSA appointed by direct recruitment as HSST (Junior) is entitled to fixation of pay under Rules 28A.
Rule 28A, Part 1 KSR provides as follows:-
"28A Notwithstanding anything contained in these rules, where an Officer holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time-scale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage of next above the pay notionally arrived at in the lower time-scale of pay by increasing the actual pay, drawn by him in the lower time-scale by one increment. He shall be given opportunity to opt any date for fixation of pay in the higher time scale of pay from the following options namely:-
Option (a)- Pay will be fixed in the higher time scale of pay, on the date of promotion, under this rule. Next increment in the higher time scale will fall due only on completion of one year from the date of such fixation of pay.
OR W.P.(C).No.24693/2014 6 Option (b)- Pay on the date of promotion will be initially fixed at the stage of of higher time scale of pay of the promoted post next above the pay in the lower time scale of pay. Thereafter fixation of pay under the rule will be allowed based on the pay in the lower post on the date opted by the promotee .i.e, on the date of increment in the lower post. Next increment will fall due only on completion of one year from the date of fixation of pay under this rule. If the fixation of pay under this rule on the date of option does not make any change in the pay in the higher time scale, the pay will remain at the same stage till completion of one year from the date of initial fixation (date of promotion) of pay in the higher time scale. Next increment in such cases will be allowed on the completion of one year from the date of initial fixation of pay in the higher time scale of pay. The competent authority shall incorporate in the promotion order a provision to the effect that the officer shall exercise option within one month from the date of order of promotion or of taking charge in the promoted post, whichever is later. The option under this rule shall be in Form No.18.
Provided that the provisions of this rule shall not apply to promotions to posts carrying a scale of pay, the minimum pay of which exceeds Rs.20,700.
Rule 2(12) of Part 1 KS & SSR defines "Recruited direct" as under:-
W.P.(C).No.24693/2014 7
"(12) A candidate is said to be "recruited direct" to a service, class, category or post when, in case the appointment has to be done in consultation with the commission, on the date of the notification by the Commission inviting applications or the recruitment, and in any other case at the time of appointment.
(i) he is not in the service of the Government of India or the Government of a State; or
(ii)being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or
(iii) he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule."
8.Government decision under Rule 28A and Government decision under Rule 37 of Part I KSR were modified by GO(P) 475/90/Fin. dated 25.09.1990. The said Government Order reads as under:-
"As per Government Decision No.5 below Rule 28A Part 1, Kerala Service Rules, the benefit of refixation of pay provided for on the Rules will be allowed only if the appointment/promotion W.P.(C).No.24693/2014 8 concerned is to a higher post belonging to the regular line of promotion. But as per the G.O.read as second paper above, orders have been issued to modify Government Decision No.1(2) under Rule 28A and Government Decision No.4 under Rule 37 allowing the benefit of refixation to an officer officiating in a post, when appointed to higher post on the advice of Public Service Commission, on the basis of the observation made by Hon.High Court in its judgment in an OP. This has created an anomalous situation where persons appointed through Public Service Commission will get the refixation benefit where as others who are appointed by transfer or by conversion of post will not get the refixation benefit.
2. Government have examined the case in detail. In order to rectify the above anomaly, Government are pleased to delete Government Decision No.5 below Rule 28A Part I, Kerala Service Rules and also to modify Government Decision No.1(2) below Rule 28A and Government Decision No.4 below Rule 37 as follows:-
(i) Rule 28A Government Decision No.1(2) An officer officiating in a post when appointed to a higher post on the advice of the Public Service Commission or otherwise is eligible for his initial pay being fixed under this rule and is also entitled to the benefit of a refixation contemplated in the last sentence of the rule.
W.P.(C).No.24693/2014 9
and
(ii) Rule 37 Government Decision No.(4) An officer officiating in a post, when appointed to a higher post on the advice of the Public Service Commission or otherwise is eligible for his initial pay being fixed under this rule and is also entitled to the benefit of refixation contemplated in the last sentence of the sub rule (a).
These orders shall have effect from 31.10.1986 and Government Decision No.5 introduced as per Government Order cited first stands withdrawn from 25-6-1986."
Clarification issued in respect of Pay Revision Orders of 2006 relied on by the learned counsel for the petitioner also contain indication that even in case of direct recruitment through PSC or otherwise, a person appointed while officiating in a lower post is entitled to fixation of pay under Rule 28A.
9.Applying the plain language of Rule 28A as well as the Government Orders on the subject, I am of the considered view that the petitioner would be entitled to fixation of pay under Rule 28A since such refixation is to be done in case of W.P.(C).No.24693/2014 10 promotion or appointment, including appointment by transfer through Public Service Commission or otherwise. The said Rule on such appointment. The Division Bench in Mohanan's case (supra) was dealing with the case of police constables joining service in other departments claiming the reckoning of past service for the purpose of grade promotion. The question of fixation of pay stands on a totally different footing. Nothing has been brought to my notice which would persuade me to depart from this interpretation which is evident from a plain reading of the Rule. An appointment by direct recruitment to the post of HSST (Junior) while the petitioner was substantially holding the post of HSA would also be an appointment to a post carrying a higher time scale of pay of an officer holding a post which would entitle him to claim the benefit of Rule 28A of Part I KSR. In the above circumstances, I am of the opinion that the impugned orders denying benefits to the petitioner are bad in law.
W.P.(C).No.24693/2014 11
10.The orders impugned are set aside. It is directed that the petitioner shall be granted the benefit of fixation of pay as provided in Rule 28A of Part I KSR on his appointment as HSST (Junior). Consequential orders shall be passed by the competent among the respondents and monetary benefits shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of a copy of this judgment.
This writ petition is ordered accordingly.
sd/-
Anu Sivaraman, Judge sj